We have considered the first of the three classes into which injuries are divisible, namely those which are intentional or wilful, and we have now to deal with the second, namely wrongs of negligence.
The term negligence has two uses, for it signifies sometimes a particular state of mind, and at other times conduct resulting therefrom. In the former or subjective sense, negligence is opposed to wrongful intention, these being the two forms assumed by that mens rea which is a condition of penal responsibility. In the latter or objective sense, it is opposed not to wrongful intention, but to intentional wrongdoing. A similar double signification is observable in other words. Cruelty, for example, means subjectively a certain disposition and objectively conduct resulting from it. The ambiguity can scarcely lead to any confusion, for the two forms of negligence are necessarily coincident. Objective negligence is merely subjective negligence realised in conduct; and subjective negligence is of no account in the law, until and unless it is manifested in act. We shall commonly use the term in the subjective sense, and shall speak objectively not of negligence, but of negligent conduct or negligent wrongdoing.[[358]]
Negligence is culpable carelessness. “It is,” says Willes, J.,[[359]] “the absence of such care as it was the duty of the defendant to use.” What then is meant by carelessness? It is clear, in the first place, that it excludes wrongful intention. These are two contrasted and mutually inconsistent mental attitudes of a person towards his acts and their consequences. No result which is due to carelessness can have been also intended. Nothing which was intended can have been due to carelessness.[[360]]
It is to be observed, in the second place, that carelessness or negligence does not necessarily consist in thoughtlessness or inadvertence. This is doubtless the commonest form of it, but it is not the only form. If I do harm, not because I intended it, but because I was thoughtless and did not advert to the dangerous nature of my act, or foolishly believed that there was no danger, I am certainly guilty of negligence. But there is another form of negligence, in which there is no thoughtlessness or inadvertence whatever. If I drive furiously down a crowded street, I may be fully conscious of the serious risk to which I expose other persons. I may not intend to injure any of them, but I knowingly and intentionally expose them to the danger. Yet if a fatal accident happens, I am liable, at the most, not for wilful, but for negligent homicide. When I consciously expose another to the risk of wrongful harm, but without any wish to harm him, and harm actually ensues, it is inflicted not wilfully, since it was not desired, nor inadvertently, since it was foreseen as possible or even probable, but nevertheless negligently.
If, then, negligence or carelessness is not to be identified with thoughtlessness or inadvertence, what is its essential nature? The correct answer seems to be that a careless person is a person who does not care. The essence of negligence is not inadvertence but indifference. Indifference is exceedingly apt to produce thoughtlessness or inadvertence; but it is not the same thing, and may exist without it, as we have seen from the example already given. If I am careless, that is to say indifferent, as to the results of my conduct, I shall very probably fail to acquire adequate foresight and consciousness of them; but I may, on the contrary, make a very accurate estimate of them, and yet remain equally indifferent with respect to them, and therefore equally negligent.
Negligence, therefore, essentially consists in the mental attitude of undue indifference with respect to one’s conduct and its consequences.[[361]]
This being so, the distinction between intention and negligence becomes clear. The wilful wrongdoer desires the harmful consequences, and therefore does the act in order that they may ensue. The negligent wrongdoer is careless (if not wholly, yet unduly) whether they ensue or not, and therefore does the act not withstanding the risk that they may ensue. The wilful wrongdoer is liable because he desires to do the harm; the negligent wrongdoer is liable because he does not sufficiently desire to avoid it. He who will excuse himself on the ground that he meant no evil is still open to the reply: Perhaps you did not, but at all events you might have avoided it, if you had sufficiently desired so to do; and you are held liable not because you desired the mischief, but because you were careless and indifferent whether it ensued or not.
Negligence, as so defined, is rightly treated as a form of mens rea, standing side by side with wrongful intention as a formal ground of responsibility. For these are the two mental attitudes which alone justify the discipline of penal justice. The law may rightly punish wilful wrongdoing, because, since the wrongdoer desired the outcome of his act, punishment will supply him for the future with a good reason for desiring the opposite. So, also, the law may justly punish negligent wrongdoing, for since the wrongdoer is careless as to the interests of others, punishment will cure this defect by making those interests for the future coincident with his own. In no other case than these two can punishment be effective, and therefore in no other case is it justifiable. So far as abstract theory is concerned, every man is exempt from penal responsibility who can truly say: The harm which I have done is not the outcome of any desire of mine to do it; neither does it proceed from any carelessness or indifference as to my acts and the results of them; I did not mean it, neither could I have avoided it by care.
It follows from the foregoing analysis that negligence is of two kinds, according as it is or is not accompanied by inadvertence. Advertent negligence is commonly termed wilful negligence or recklessness. Inadvertent negligence may be distinguished as simple. In the former the harm done is foreseen as possible or probable, but it is not willed. In the latter it is neither foreseen nor willed. In each case carelessness, that is to say, indifference as to consequences, is present; but in the former case this indifference does not, while in the latter it does prevent these consequences from being foreseen. The physician who treats a patient improperly through ignorance or forgetfulness is guilty of simple or inadvertent negligence; but if he does the same in order to save himself trouble, or by way of a scientific experiment, with full recognition of the dangers so incurred, his negligence is wilful.[[362]]
This distinction is of little practical importance, but demands recognition here, partly because of the false opinion that all negligence is inadvertent, and partly because of the puzzling nature of the expression wilful negligence. In view of the fundamental opposition between intention and negligence, this expression looks at first sight self-contradictory, but it is not so. He who does a dangerous act, well knowing that he is exposing others to a serious risk of injury, and thereby causes a fatal accident, is guilty of negligent, not of wilful homicide. But the negligence is wilful, though the homicide is not. He is not merely negligent, but consciously, wilfully, and intentionally negligent; for he knows at the time the true nature of the act which he is doing. It is intentional with respect to the fact that his mental attitude towards the consequences is one of culpable indifference.